A survey of federal and state courts' approaches to a constitutional right of actual innocence: is there a need for a state constitutional right in New York in the aftermath of CPL s. 440.10(G-1)?

• Author: Leventhal, John M.
• Position: New York State Criminal Procedure Law - Appendix and footnotes, p. 1488-1515

APPENDIX Statute Code Nature Alabama ALA. R. Post-Conviction Remedy: R. CRIM. P. 32.1 32.1(e)(5): The facts must -- establish that the defendant ALA. Code is innocent of the crime for ([section]) which the defendant was 15-18-200(a) convicted or should not have (2013) received the sentence that the defendant received. -- DNA: Relief limited to those incarcerated for capital offense to prove factual innocence. Alaska ALASKA Newly Discovered Evidence: STAT. (b)(2)(D): Based on newly ([section]) discovered evidence and 12.72.020 establishes by clear and (2012) convincing evidence that the -- applicant is innocent. ALASKA -- STAT. ([section]) DNA: Court will grant 12.73.010 post-conviction DNA testing (2012) if, among other things, the defendant is convicted of a felony, the defendant did not concede guilt, and the testing may produce new material evidence which would raise a reasonable probability that the applicant did not commit the offense. Arizona ARIZ. R. Actual Innocence: clear and CRIM. P. convincing evidence standard 32.1(h) that no reasonable fact finder -- would find defendant guilt ARIZ. REV. beyond a reasonable doubt. STAT. ANN. -- ([section]) DNA: To access post-conviction 13-4240 DNA testing, defendant must be (2013) convicted of a felony and there is a reasonable probability that the test could prove defendant's innocence. Arkansas ARK. CODE. DNA: Actual Innocence via ANN. ([section] habeas, limited to DNA [section]) evidence where the identity of 16-112-201 the perpetrator must be at to--07 (2012) issue and there is a reasonable probability that the test could prove defendant's innocence. California CAL. PENAL Habeas: Relief only available CODE ([section]) if there is newly discovered 1405 (West 2013) evidence. -- DNA: Incarcerated defendant may move for post-conviction DNA testing if, among other things, convicted of a felony and the identity of the perpetrator must have been, or should have been, an issue. Colorado COLO. REV. Newly Discovered Evidence: STAT. ([section]) Requires material facts to 18-1-410(e) (2012) vacate the conviction or -- sentence in the interest of COLO. REV. justice. STAT. ([section] -- [section]) DNA: Defendant must prove his 18-1-411 actual innocence by clear and to-416 (2012) convincing evidence that no reasonable juror would convict the defendant. If not procedurally barred, may use DNA results to apply for post-conviction relief through ([section]) 410(e). Connecticut CONN. GEN. DNA: Defendant must be STAT. ([section]) incarcerated and there must be 54-102kk (2012) a reasonable probability that defendant would not be prosecuted or conviction with the DNA evidence. Delaware DEL. CODE DNA: Statute combines claims ANN. tit. 11, of actual innocence through ([section]) 4504 DNA or new evidence. Identity (2013) must have been at issue and the method to assess evidence must be a new technology. District of D.C. CODE Actual Innocence: Freestanding Columbia ([section]) actual innocence statute but 22-4135 new evidence required. (2013) -- -- DNA: Defendant in custody for D.C. CODE the conviction of a violent ([section]) crime may file for 22-4133 post-conviction DNA testing (2013) if, among other things, he explains how the DNA evidence would help establish his actual innocence. Florida FLA. R. DNA: Defendant can request CRIM. P. post-conviction DNA testing if 3.853 convicted of a felony, -- identity was at issue in the FLA. STAT. case, and there is a ([section][section]) reasonable probability that 925.11, 943.3251 the DNA test would prove (2012) innocence. Georgia GA. CODE DNA: Defendant can request ANN. ([section]) post-conviction DNA testing if 5-5-41(c) (2012) convicted of a felony, identity was or should have been at issue in the case, and there is a reasonable probability that the DNA test would prove innocence. Hawaii HAW. REV. DNA: Defendant may file for STAT. ([section] post-conviction DNA testing of [section]) 844D-121 biological evidence that is to-33(2012) related to the prosecution which resulted in the conviction. Idaho IDAHO CODE DNA: Defendant can demonstrate ANN. ([section]) actual innocence only by the 19-4901 cross-referenced DNA testing (2012) statute. Illinois 725 ILL. Post-Conviction Relief: COMP. STAT. Defendant may file for 5/122-1(a) post-conviction relief if the (2012) proceedings had a substantial -- denial of his state or federal 725 ILL. Constitutional rights. COMP. STAT. -- ANN. 5/116-3 DNA: Persons convicted may (2012) petition for post-conviction DNA testing if, among other things, identity was at issue at trial and the result of testing has the potential to produce new evidence materially relevant to defendant's assertion of actual innocence. Indiana IND. CODE DNA: Defendant may apply for ([section]) post-conviction DNA testing 35-38-7-8 if, among other things, the (2012) evidence to be tested is material to the issue of identity and there is a reasonable probability that defendnt would not have been prosecuted, convicted of, or receive as severe a sentence for the offense. Iowa IOWA CODE DNA: Defendant convicted of a ([section]) 81.10(7) felony may apply for (2012) post-conviction DNA testing -- if, among other things, the IOWA CODE identity was a significant ([section]) issue and evidence would raise 822.2(d) reasonable probability that (2012) defendant would not have been convicted if DNA test conducted. -- Newly Discovered Evidence: Allows vacation or modification of sentence for reasons including violation of law or newly discovered evidence that requires vacation in the interest of justice. Kansas KAN. STAT. DNA: Defendant may apply for ANN. ([section]) post-conviction DNA testing 21-2512 (2012) if, among other things, defendant is convicted of rape or murder and the biological material to be tested is related to the prosecution that resulted in conviction. Kentucky KY. REV. DNA: Defendant may apply for STAT. ANN. post-conviction DNA testing ([section]) if, among other things, 422.285 convicted of a capital crime (West 2012) and there is a reasonable -- probability that defendant KY. R. CRIM. would not have been prosecuted P. 10.02 if exculpatory results obtained through DNA testing. -- Motion for a New Trial: Court has discretion to grant new trial if required in the interest of justice. Louisiana LA. CODE. DNA: Defendant convicted of a CRIM. PRO. felony may apply for ANN. art. post-conviction DNA testing 926.1 (2012) if, among other things, the evidence would raise reasonable likelihood the evidence would establish the defendant's innocence. Maine ME. REV. DNA: Defendant may apply for STAT. tit. 15, post-conviction DNA testing ([section]) if, among other things, the 2138(4-A)(D), identity was at issue. (10) (2012) Further, if DNA test produce favorable results the defendant must show by clear and convincing evidence that only the perpetrator of the crime could be the source of the evidence. Maryland MD. CODE Writ of Actual Innocence: ANN., GRIM. Although this is an explicit PROC. ([section]) writ of actual innocence, it 8-301 (West still requires new evidence. 2012) -- -- DNA Evidence: Persons MD. CODE convicted of felonies may ANN., CRIM. petition for DNA testing and PROC. ([section]) court will grant if there is a 8-201 (West reasonable probability that 2012) "DNA evidence ... [will] produce exculpatory or mitigating evidence relevant to a claim of wrongful conviction." Massachusetts MASS. GEN. DNA Evidence: Person may move LAWS ch. for post-conviction DNA 278A, ([section] testing if he is convicted of [section]) 1-7 a criminal offense in MA and (West 2012) incarcerated, the identity of the perpetrator is at issue and he asserts factual innocence of the crime convicted. Courts will grant motion if the defendant meets the procedural requirements and shows that DNA testing will potentially result in material evidence related to the identification of the perpetrator. Michigan MICH. R. Post-Conviction Relief: CRIM. P Defendant can move to set 6.502 aside or modify judgment. -- -- MICH. COMP. DNA Evidence: Defendant may LAWS ([section]) petition for DNA testing if he 770.16 is currently incarcerated and (2012) convicted of a felony. Defendant must show by clear and convincing evidence that the identity was at issue during trial to receive testing. Minnesota MINN. STAT. DNA Evidence: Statute provides ([section]) 590.01 that a person convicted of a (2012) crime may bring a motion for fingerprint or forensic DNA testing to demonstrate the person's "actual innocence" if, among other things, identity was at issue in trial and the evidence is in chain of custody to assure it has not been tampered. Mississippi MISS. CODE Post-Conviction Relief: Allows ANN, ([section]) vacation or modification of 99-39-5 (2012) sentence for reasons including violation of law or newly discovered evidence (including DNA) in the interest of justice. Missouri MO. REV. DNA: Defendant must be in STAT. ([section] custody, the technology for [section]) testing was not reasonably 547.035, .037 available at the time, (2012) identity was an issue at trial, and there is a reasonable probability that movant would not be convicted if exculpatory results were obtained through DNA testing. Montana MONT. CODE DNA: Defendant may petition ANN. ([section]) for DNA testing if convicted 46-21-110 of a felony, currently (2012) incarcerated, and result would be relevant to the defendant's assertion of actual innocence. Nebraska NEB. REV. Motion for New Trial: Various STAT. ([section]) grounds (including new 29-2101 (2012) evidence) for post-conviction -- relief including when it NEB. REV. affects the defendant's STAT. ([section]) substantial rights. 29-3001 (2012) -- -- post-conviction Relief. NEB. REV. Defendant may obtain STAT. ([section]) post-conviction relief for 29-4120 (2012) instances including a violation of state or federal Constitutional rights or laws. -- DNA : Defendant may petition for post-conviction DNA testing if in custody. Court will grant if the...